While a real estate board may undoubtedly make rules and regulations governing and binding upon its members, they are not binding upon, nor can they be enforced against non-members; much less can they be held to constitute a rule of evidence binding or controlling the courts in the trial of causes. The rules of a real estate board do not establish a custom or usage, for to do so would require that they be acted upon with uniformity, and be so generally known and established as to raise a fair presumption that they were known to the contracting parties so that they may be assumed to have contracted with relation to them, and with knowledge of them. It would also be necessary to show that the rate established by such a rule was reasonable and customary for such services.55
Courts will not take judicial cognizance of the rules of a board of brokers, unless they are rules or usages of trade and commerce, which would be recognized without their adoption by any particular board or association.
52 Jones v. Herrick, 118 N. W. 444 (Iowa 1908), (citing Southwest Va. M. &. L. Co. v. Chase, 95 Va. 50; 27 S. E. 826; Robinson v. U. S. 13 Wall. 363; 20 L. Ed. 653; Vail v. Rice, 5 N. Y. 155; Partridge v. Forsyth, 29 Ala. 200; 3 Wlgmore on Ev., Sec. BOSS).
53 Gleason v. Met. St. R. Co., 99 App. Div. 211 (1904). See also Chambers v. Peters, 30 Misc. 756 (N. Y. 1900).
54 Dickinson v. City of Poughkeepsle, 75 N. Y. 77 (1878). See also Sec. 226 infra.
55 Springer v. Stlltz, 133 111. App. 551, 552 (1907), (citing Calland v. Trapet, 70 111. App. 228; Bissell v. Ryan, 23 111. 566).
The party who relies upon such rules must plead them. "When a contract is entered into with reference to rules of that character, they become, in effect, special terms of the contract, and they must be averred by the party who claims that he has performed the contract on his part in accordance with such rules, or that the other party has failed to comply therewith."56
In the absence of a special contract, a real estate broker who sells a leasehold is not entitled to the same commissions as if he had sold the fee, and a rule of a real estate exchange allowing commissions on the full value of the fee under such circumstances would not control the situation unless it were proven that the rule was of such public notoriety that the principal must be presumed to have had knowledge of it, and therefore to have dealt expecting to be bound by it.57
Where there is no agreement as to the amount of commission and no custom on the subject, the broker is entitled to what his services are reasonably worth. "The amount, in the absence of a contract or usage fixing it, must as in other cases, be what the services were fairly worth."58 "In such cases the common course is to prove what price or sum is usually or customarily paid for services of the kind shown to have been rendered; and it is no objection to a recovery that the witnesses disagree in their evidence as to the price which is usually paid."59
Where the plaintiff claims commissions pursuant to custom, it seems that evidence on his behalf of the reasonable value of his services is nevertheless likewise admissible.60 But where he sues under a contract fixing the compensation, evidence of the value of the services is inadmissible.61
56 Goldsmith v. Sawyer, 46 Cal. 200 (1873).
57 Groscup v. Downey, 105 Md. 273 (1907).
58 Briggs v. Boyd, 56 N. Y. 289, 295 (1874).
59 Walker Mfg. Co. v. Knox, 136 Fed. 339 (1905). See also Sec. 224 supra.
In an action brought by a broker to recover commissions, he is a competent witness as to the value of his services as broker.62
60 Rublno v. Scott, 118 N. Y. 662 (1889). See also Fleming v. Wells, 101 Pac. 66 (Colo. 1909), referred to in Sec. 222 supra.
61 Pordtran v. Stowers, 113 S. W. 631 (Tex. 1908). See also Reams v. Wilson, 147 N. C. 304 (1908), which cites other authorities, as indicated in Sec. 218 supra.
62 Chambers v. Peters, 30 Misc. 756 (N. Y. 1900).